Higher standards for ultimate punishment

Published 5:48 pm, Tuesday, September 24, 2013

An American Bar Association panel’s groundbreaking assessment of Texas’ death penalty is a road map toward a fairer and saner system of imposing the ultimate penalty, one rid of peculiarities that leave the state open to error and ridicule.

Even those state lawmakers who are always on guard against hidden agendas to abolish the death penalty should welcome this report, unveiled last week at a Texas Capitol news conference.

The ABA’s death penalty assessment panel for Texas, a bipartisan group of Texans, is agnostic on capital punishment. Its job was measuring Texas against national standards of fairness and accuracy. Despite recent successes in shoring up weaknesses, Texas, unfortunately, still comes up short on several counts.

If there’s one thing we’ve heard from even the most conservative lawmakers in Austin, it’s their impatience with defenders of the status quo, where things are tilted grossly toward the state and against individual rights and common sense.

Along those lines, here are areas cited by the ABA panel as overripe for reform:

Death row in Texas houses such certifiably insane inmates as Andre Thomas of Sherman, who ripped out one of his eyeballs at two different points in his incarceration, once before trial. The jury heard about the hallucinations that tormented him before he killed and carved out the organs of his estranged wife and two children.

Yet the Texas Court of Criminal Appeals, while acknowledging that Thomas is “clearly ’crazy,’” said he wasn’t insane under the law.

The ABA panel points out that Texas’ narrowly defined insanity law makes people eligible for the death penalty “even if their actions were based on delusions caused by their illness.” This should change. We hardly believe the strong public support for the death penalty in Texas extends to psychotic or brain-damaged people who can be stabilized long enough to face trial.

Even the tough-minded appeals court seems to be wising up on the subject. It ruled this month that paranoid schizophrenic Steven Staley of Fort Worth, a convicted killer, could not be medically stabilized by court order so that he would be sane enough for execution. That standard also should be incorporated into state law to help drag Texas out of medieval times.

The U.S. Supreme Court ruled 11 years ago that executing “mildly mentally retarded” murderer Daryl Atkins of Virginia would be unconstitutionally cruel and unusual punishment not befitting evolving standards of decency. Since then, Texas lawmakers have balked at passing a law defining what intellectual disabilities would render someone ineligible for execution.

Left to fill the void, the Texas Court of Criminal Appeals devised a list of seven admittedly subjective factors unsupported by science, such as whether a person can “lie effectively.” In rejecting one death penalty appeal last summer, the court said the simple-minded character Lennie from Steinbeck’s novel “Of Mice and Men” is the type of person who should be protected under the Atkins decision.

The ABA panel has a better idea, one that this newspaper has called for in the past: Pass a law defining intellectual disabilities for capital cases to conform with recognized standards. Better yet, the ABA panel says, have the court decide the question of intellectual abilities before trial. Currently, the same jury that convicts a person later determines mental abilities in the sentencing phase. The ABA panel’s idea would save the taxpayers money if the death penalty should come off the table at the outset.

Either way, fictional characters should not be the guideposts for who lives and dies.

Once convicted in Texas, a murderer is eligible for execution only if jurors find that he represents “a future danger to society,” a nebulous standard and an invitation to fortune-telling from witnesses proffered as experts. If jurors answer yes, they go on to look at mitigating and aggravating factors in his background that argue for leniency or severe punishment.

The ABA panel agrees with critics that unscientific predictions should be barred or at least tightly regulated at capital trials. “Future dangerousness” might have been a legitimate concern decades ago, when a killer’s life sentence didn’t guarantee a long prison stay. But now prosecutors can seek life without parole, the ultimate protection for society.

This is probably the most complicated reform area, considering the panel’s finding of a hodge-podge of appointment methods and criteria for defense counsel for indigent defendants, with presiding judges typically pulling names from lists of ostensibly qualified lawyers. Trial judges also generally decide how much money defense teams can spend in case preparation and, in some counties, impose a cap.In setting a defense team’s budget, a judge potentially affects the trial outcome. Financial considerations are best taken out of the court’s hands, perhaps to the state’s Office of Court Administration, freeing the judge to serve as impartial arbiter of the facts.The panel also found uneven quality in representation for indigent defendants for both trial and appeals, and it called for standardized qualifications, as opposed to today’s collection of locally maintained attorney lists and varying criteria to comply with state minimums.

Many of the ABA panel’s recommendations are familiar to lawmakers and criminal-law experts who frequent the state Capitol, but their value is enhanced by the timing, rich research and presentation.

Legislative leaders have yet to announce topics that House and Senate committees should tackle to prepare for the 2015 lawmaking session. Now, with benefit of the ABA panel’s compendium, Lt. Gov. David Dewhurst and House Speaker Joe Straus should name a joint House-Senate interim committee to sort through the findings and prioritize the most pressing needs for reform.

Further, Straus named a special committee earlier this year to map out the first rewrite of the massive Texas Code of Criminal Procedure since 1965. It would be nonsense for that effort to go forward without careful consideration to the ABA panel’s findings.

Texas is the 12th state whose capital punishment system has been assessed by an ABA-recruited team. Others have used the findings to tighten practices and forge fairer systems. Texas, the nation’s leading death penalty state by far, therefore has the greatest responsibility to respond where it’s a clear outlier on national norms.